Emily Salisbury v Local Court of New South Wales and anor.

By an amended summons filed on 15 June 2016 the plaintiff (who is the defendant in proceedings before the Local Court) seeks to appeal against orders made by his Honour Magistrate Corry in the Katoomba Local Court on 3 May 2016.

A court book was tendered with the consent of the parties and marked Ex. A. It contained an affidavit of Claudia Pendlebury, the solicitor for the second defendant, affirmed on 20 July 2016. Annexed to that affidavit was a transcript of the proceedings before the Magistrate.

It is noted that s. 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) provides as follows:

The issue raised in the present case concerns the power of a Magistrate in the Local Court to make orders requiring a defendant charged with an offence to serve expert evidence in advance of the hearing. There is no dispute that such issue raises a question of law alone. Similarly, the second defendant (who was the only active defendant in the proceedings) took no objection to a grant of leave.

For the reasons which follow, I am satisfied that leave should be granted, the appeal allowed, and the matter remitted to the Local Court to be dealt with according to law.

On 3 October 2015 the plaintiff was issued with a penalty infringement notice alleging an offence of exceeding the speed limit by greater than 20kmh whilst driving a class A motor vehicle, contrary to Rule 20 of the Road Rules 2014 (NSW).

On 4 January 2016, pursuant to s. 23A of the Fines Act 1996 (NSW), the plaintiff elected not to pay the amount of the infringement notice and to have the matter dealt by a Court. The matter came before the Local Court at Katoomba on 22 February 2016, at which time a plea of not guilty was entered. A hearing date of 3 May 2016 was set.

Part 2 of Chapter 4 of the Criminal Procedure Act 1986 (NSW) (“the CPA”) prescribes various pre-trial procedures applicable to criminal matters heard before the Local Court. Section 183 of the CPA requires a Brief of Evidence to be served by the prosecution on a defendant, where a plea of not guilty is entered, at least 14 days before the hearing. However, pursuant to s. 187(5) of the CPA there is no requirement for the service of a Brief of Evidence in proceedings for an offence of a kind, or proceedings of a kind, prescribed by the Regulations. There is no issue in the present case that s. 187(5) applied in the present case, such that there was no requirement to serve a Brief of Evidence upon the plaintiff.

It is also relevant to note at this point that, unlike the position in this Court (pursuant to powers conferred by ss. 134 and following of the CPA) there is no case management regime operating in the Local Court in respect of summary criminal proceedings: Director of Public Prosecutions (NSW) v Wililo and Anor. [2012] NSWSC 713 at [50] per Johnson J.

On 3 May 2016 the charge against the plaintiff came before Magistrate Corry in the Local Court for hearing. Counsel for the plaintiff told the Magistrate that the matter was ready to proceed, before saying (T1 L18-20):

The Magistrate then inquired of counsel as to the likely length of the hearing. Counsel responded that he thought that the hearing was likely to take “a number of hours”. The Magistrate then inquired of the police prosecutor as to whether or not he was ready to proceed. The prosecutor responded by saying the following (T1 L28-35):

Counsel for the plaintiff responded by asserting that notice had in fact been given. He then said (T2 L7-18):

Following further exchanges, the Magistrate said (T2 L27-30):

Counsel for the plaintiff again submitted to the Magistrate that there was no disclosure obligation upon a defendant. The Magistrate then observed (commencing at T2 L45):

Counsel for the plaintiff then alluded (T3 L4-10) to what he asserted were “admissibility difficulties with fundamental aspects of the prosecution case”. He indicated that if the matter proceeded, it was likely that he would make a no case submission at the close of the prosecution evidence. He expressed some confidence that such a submission would be successful. However, the Magistrate rejected the suggestion that the matter should commence, saying (at T3 L12 – 17):

Counsel for the plaintiff then repeated (commencing at T3 L19) his submission that there was no obligation upon a defendant in criminal proceedings to serve evidence. Indeed, counsel went so far as to say:

His Honour then said (commencing at T3 L23):

The plaintiff relied on two grounds of appeal, and asserted that the Magistrate erred in:

It is the plaintiff’s case that the error asserted in Ground 2 caused a miscarriage of the Magistrate’s discretion to grant an adjournment, thus giving rise to Ground 1. In these circumstances it is appropriate to consider Ground 2 first.

Counsel for the plaintiff submitted that the Magistrate had no power to make an order requiring the service of an expert report. It was submitted that the only available inference to be drawn from the passage of the transcript set out in [17] above was that in making such an order, the Magistrate was purporting to exercise what he saw as an implied power of the Local Court to (as his Honour put it) “control its own proceedings”.

It was submitted that even accepting that a Local Court has a power to make such orders as are necessary to allow it to carry out its functions, it was beyond his powers for the Magistrate to require a defendant in criminal proceedings to serve evidence going to his or her intended defence. It was submitted that the order made by the Magistrate traversed a number of fundamental principles regarding the rights of a person charged with a criminal offence.

Counsel further submitted that if, notwithstanding the Magistrate’s reference to the Court having power to control its own proceedings, his Honour was purporting to exercise the power contained in s. 28 of the Local Court Act 2007 (NSW) (“the LCA”), the generality of the terms of that section did not reflect an intention of the part of the Parliament to oust fundamental principles governing the rights of an accused.

Counsel for the second defendant generally accepted the position advanced by the plaintiff and conceded that in all of the circumstances the Magistrate had no power to make the order that he did.

For the reasons that follow, the concession made by the second defendant was a proper one. In my view, the Magistrate did not have the power to make an order requiring the plaintiff to serve expert evidence in advance of the hearing. In order to explain why this is so, it is necessary to have regard to the powers of the Local Court, and the nature of our criminal justice system.

The Local Court is created by s. 7 of the LCA. It is constituted by a Magistrate pursuant to s. 8 of the LCA. It derives its powers from the LCA, being the statute which creates it. Whilst it has no inherent power, it does have an implied power to do such things as are necessary for the exercise of the power(s) otherwise conferred upon it. In Grassby v R [1989] HCA 45; (1989) 168 CLR 1; Dawson J explained the nature of such an implied power in the following way (at 16-17):

Our criminal justice system is accusatory in nature. It obliges the Crown to make out a case before any response is forthcoming from the accused: Caltex Refining Co Pty Limited v State Pollution Control Commission (1991) 25 NSWLR 118 at 127 per Gleeson CJ; NSW Food Authority v Nutricia Australia Pty Limited [2008] NSWCCA 252; (2008) 72 NSWLR 456 at [148] per Spigelman CJ (Hidden and Latham JJ agreeing).

In Nutricia (supra) Spigelman CJ also said (at [160]):

Fundamental to such system is the principle that the Crown bears the onus of proving the guilt of an accused. That principle gives rise to an accused person having a number of rights. In Petty v R; Maiden v R [1991] HCA 34; (1991) 173 CLR 95 Brennan J (as his Honour then was) said (at 108):

The proceedings brought against the plaintiff in the Local Court were such as to attract the application of these principles.

Even accepting that a Local Court has an implied power of the kind of which Dawson J spoke in Grassby (supra), any such implied power does not extend to the power to make an order, the effect of which is to abrogate fundamental common law principles which govern the rights of an accused. The underlying principle of the accusatorial system is that it is for the prosecution to put its case both fully and fairly, before the accused is called upon to announce the course that he or she will follow: R v Soma [2003] HCA 13; (2003) 212 CLR 299 at [27] per Gleeson CJ. The order that the plaintiff serve an expert report in advance of the hearing traversed that principle. In making it the Magistrate acted beyond his power.

I have already noted (at [21]) that in the course of argument before me reference was made to the provisions of s. 28 of the LCA which is in the following terms:

Legislation will not be interpreted as abrogating a fundamental common law right unless the intention to do so is manifested in clear and unambiguous terms: Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 16- 18; Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 436-437; Ling v South Australia Police [1996] SASC 5856 at [14]. It follows that, absent such a clear legislative statement, a statutory power should be read as not authorising steps to compel an accused to provide information for the purposes of the proceedings: Nutricia (supra) at [148]-[151]; [159] per Spigelman CJ (Hidden and Latham JJ agreeing); Sutherland Shire Council v Benedict Industries Pty Limited [2013] NSWLEC 121 at [6]. As Spigelman CJ observed in Nutricia (at [161]):

The terms of s. 28 are general. The section contains nothing in the way of a clear legislative statement that the accusatorial system is to be abrogated, or some aspect of it curtailed. In these circumstances, the terms of s. 28 cannot be interpreted as conferring a power on a Magistrate to require an accused person to disclose his case, or to disclose whether evidence will be called and, if so, from whom it will be called and what that evidence is: Ling (supra) at [16].

Section 28 may be usefully contrasted with s. 143(2)(a) of the CPA which confers an express power on this Court to require an accused to serve any expert report upon which he or she proposes to rely in advance of the trial.

For all of these reasons, Ground 2 is made out. In those circumstances, it is unnecessary to consider Ground 1.

I make the following orders: